Ms. Davis tearfully testified that she had not hesitated to stand by her
religious views and defy the courts. “I didn’t have to think about it,”
she said. “There was no choice there....

“Marriage is between one man and one woman,” she replied, before a lawyer asked her whether she had “the ability to believe marriage is anything else.” Ms. Davis offered a terse response: “No.”...

Judge Bunning... said Ms. Davis’s explanation for disobeying his order was “simply insufficient." “It’s not physically impossible for her to issue the licenses,” he said. “She’s choosing not to.”

A high-rated comment at the link (which goes to the NYT):

I am an Orthodox Jew. I can't eat milk and meat together as per my own personal beliefs. But if I were a county clerk, and someone wanted to open up a cheeseburger joint, I'd have absolutely zero right as a government official to deny that person his permit on the grounds of the rules of my religion.

The answer to that, in the terms that Judge Bunning found "simply insufficient," would be that the Orthodox Jewish county clerk would not lack the mental capacity to conceive of a cheeseburger joint as a business requiring a permit. It would just be a business he would not patronize and perhaps disapprove of. Davis was arguing a lack of an "ability to believe" that marriage is anything other than the union of a man and a woman. I do agree with the judge that the argument is insufficient. As a government official, she's obligate to treat same-sex marriages the same as opposite as marriages, whether she privately thinks of them as marriages or not. No one is requiring her to believe something she doesn't believe. She's simply required, as a government official, not to violate the rights of citizens.

198 comments:

I could sympathize if she were a private caterer and did not want to cater a gay wedding--but she's a public servant. Do your damn job or quit.

Would her supporters be backing her if she refused to marry two atheists, or people of mixed religion? It seems though she has decided it's gay marriages alone that she is having a problem with, and she has that right as a public citizen to have nothing to do with them, but you can't refuse to do a part of your government job.

The precedent I see established here is that the judiciary is supposed to jail government officials who are not found to do their job adequately, or to the standard the judiciary accepts is their job.

Had she been fired, removed from office, fine. I also can't tell if the county asked her to step down But she raised a religious objection to a NEWLY instituted requirement of her role, and while still fulfilling the remainder of her role a judge jailed her for deciding that religious objection prevented her from fulfilling the new requirement of the role.

First: I love the idea that the judiciary can subjectively decide a government employee is failing to perform their duties and jail them as a result - especially when it's a religious objection they are trying to punish. That's just an awesome combination all around.

Second: I can not sit here and see any sitting judge doing the same to a Muslim in today's cultural sensitivities, or to a southern black christian preacher, or certain others. Maybe I'm wrong, but there's an element of "You are a white Christian woman so you are safe to penalize" in how I see this.

“Every public official is subject to the rule of law,” Mr. Earnest said. “No one is above the law. That applies to the president of the United States and it applies to the clerk of Rowan County, Kentucky, as well.”

1. Did any Federal judge ever send anyone to jail for "marrying" same sex couples in states were such marriages were not permitted?

2. The remedy here is for the Kentucky State legislature to impeach Ms. Davis and remove her from office. There is no emergency. Same sex applicants can walk over to the next county, no bigger than Kentucky counties are, and get their licenses there.So why not just put an injunction on Ms. Davis to prohibit her from fulfilling any duties of her office unless she promises to fulfill all of them?

3. The judge apparently is threatening to send Ms. Davis' clerks to jail unless they sign for same sex marriage licenses. Is that even legal? If the Clerk, her very own self, is in jail and cannot supervise her office, can her subordinates sign for anything at all? And especially things she has ordered them not to sign?

"It would be forbidden for him to prepare and sell the cheeseburger. That would be a closer analogy."

No one is requiring Kim Davis to be married to a woman. That would be the equivalent of the Jew having to eat the hamburger. The equivalent to the Jew having to prepare and sell the cheeseburger would be requiring Davis to perform the ceremony. That isn't happening here. It's just issuing the license.

This is quite absurd but exactly what I suggested should be done. Christians are being put into the position shown by Muslims and illegal immigrants that threats and terrorism will do the only trick to get the government to agree with you. I fail to see how an elected official can be jailed for refusing to issue marriage licensees because a federal judge oversteps and directs contempt. The elected democrat should either be impeached recalled or not re elected. Clerks like everyone else are stewards of a democratic majority and are required to do the will of the people or suffer defeat. But acting as clerk in her discretion is political and thus the judge is acting alike a political legislator rather than a judge.

I highly suspect that this will motivate Christians but in an entirely bad way for the judiciary.

"The precedent I see established here is that the judiciary is supposed to jail government officials who are not found to do their job adequately, or to the standard the judiciary accepts is their job."

There's no precedent getting established here. Government officials can be ordered to follow the law. To refuse to follow the order is contempt. Contempt is dealt with by jailing the person to get them to comply. It's completely ordinary.

Curious George said...“Every public official is subject to the rule of law,” Mr. Earnest said. ...LOL

No kidding.

Marriage licenses are racist!

Marriage License"Identification RequirementsAll applicants must present a current driver's license or picture ID, valid passport, INS registration or certified copy of birth certificate. If you have never been issued a social security number from the United States you will need to provide two forms of government issued ID."

The duty to believe isn't what's happening here. There's a requirement to treat gay couples equally. Davis can think whatever she wants, but as a government official, she has no entitlement to violate their rights.

Your correction is spot on regarding the preparation and sale. However, there is another prohibition regarding facilitating the commission of a sin by another. [There is no lack of prohibitions in Jewish Law. It keeps me busy].

None of the officials (Mayor Gavin Newsom, Mayor Jason West, D. Bruce Hanes) who issued same-sex marriage licenses when that was illegal went to jail or were threatened with jail. "Follow the law or accept the consequences" is not the operating principle here.

The principle is "What identity will be favored in the selective application of law?"

And, seeing that the KY legislature has "legalized" same sex marriages, and the Governor has ordered all County Clerks to comply, would not the more apprpriate course for the Feds to follow be to request that the Governor do something to see that his order is complied with?

"There's no precedent getting established here. Government officials can be ordered to follow the law. To refuse to follow the order is contempt. Contempt is dealt with by jailing the person to get them to comply. It's completely ordinary."

I can't agree with you that there's no precedent being established here, Ann, but I do understand what you are saying.

I'm going to disagree with you though: The judge established that Davis will not change her mind or perform her job the way federal law now dictates. The current course of action would be for him to demand she resign from her position, effective immediately, as she's no longer able to fulfill her duties with the religious beliefs she has espoused clearly.

Instead, the PRECEDENT the judge set was to jail her for being unwilling to perform an act as part of her government duties that she disagrees with on religious grounds after being ordered to do so.

....

Let me re-state that: If the judge had ordered her to resign her position due to her inability to fulfill her position, or else issue the license, and held her in contempt as a result - I'd agree.

But instead, as far as I can tell, if said issue the license or go to jail until you change your mind on your beliefs. And that's where the dangerous precedent is set

I am an Orthodox Jew. I can't eat milk and meat together as per my own personal beliefs. But if I were a county clerk, and someone wanted to open up a cheeseburger joint, I'd have absolutely zero right as a government official to deny that person his permit on the grounds of the rules of my religion.

And this proves what, exactly?

I have no doubts that the mob commenting at the Times (and quite possibly this commenter specifically) approves of the Denver City Council obstructing the opening of a Chik-fil-a restaurant at the Denver Airport based on the opposition of the Cathay's to SSM.

"It would be forbidden for him to prepare and sell the cheeseburger. That would be a closer analogy."

Not in the least; his analogy was apt. Issuing a license permitting a couple to wed does not mean the issuer of the license is conducting the wedding any more than issuing a license permitting a non-kosher restaurant to open makes the issuer of the license the proprietor of the restaurant or the preparer of the restaurant's food.

None of the officials (Mayor Gavin Newsom, Mayor Jason West, D. Bruce Hanes) who issued same-sex marriage licenses when that was illegal went to jail or were threatened with jail. "Follow the law or accept the consequences" is not the operating principle here.

The principle is "What identity will be favored in the selective application of law?"

Oh, yeah, let's have the government start cranking out Christian martyrs. That'll work out just peachy! Ask the Roman Empire how that turned out for them, and they started with zero Christians, not seventy per cent.

The march to civil war begins.

And I just love how my lefty FB friends have overnight discovered that they are law & order zealots. Jeezo-peep, what a bunch of fucking Stalinists!

Gabriel said...None of the officials (Mayor Gavin Newsom, Mayor Jason West, D. Bruce Hanes) who issued same-sex marriage licenses when that was illegal went to jail or were threatened with jail.

You're leaving out the part that when a court ordered them to stop issuing licenses, they all complied with that court order, thus avoiding being jailed for contempt.

While I don't necessarily agree that she should be jailed, I am sympathetic to the judge's claim that any fines would just be paid by some outside organization (like her lawyers) so that doesn't get anyone closer to obeying the court order.

Compliance is legality. If no one complied with the unconscionable SCOTUS "ruling" then it would not be legal. I commend her for saying NO MORE. This is a takeover by the Usurper and his fellow travelers.

I doubt the couple thought their complaint would send the woman to jail.

After seeing the behavior in the case of the bakery in CO --- I doubt they'd care. Activists usually don't.

No one is requiring Kim Davis to be married to a woman. That would be the equivalent of the Jew having to eat the hamburger. The equivalent to the Jew having to prepare and sell the cheeseburger would be requiring Davis to perform the ceremony. That isn't happening here. It's just issuing the license.

Nobody REQUIRED federal agents to be slaves. Just to return them to their rightful owners if they escaped.

She absolutely should issue the licenses. It's not her call otherwise. That does however bring up the issue of people like jerry brown who r fused to honor prop 8 or Gavin newsome who gave out 4000 licenses for gay marriage he knew were fraudulent. But cause he told the clerks to change the forms. And neither was a clerk. They were governor and mayor respectively. I didn't hear too many proponents of gay marriage demand that either cease and desist.

The judicial branch just makes stuff up and invents new law, which is even worse.

None of them are punished in any significant way.

Either we have rule of law and all the above are going to be punished forthwith, or this is just tribalism with one side punished and the other rewarded. You cannot expect the punished side to play along once they figure out the game is rigged.

You best get working before everything falls apart. Once the niceties of society break down, there is low demand for law professors. I hope you succeed because I am poorly adapted for Mad Max stunt shows.

"What RC wants is for people to 'believe' that a sterile union between to people of like sex is a ;marriage.'"

Actually, I don't care what people think as long as it does not intrude upon the legal rights of others to live as they please and as the law permits and as long as the law provides equal rights and protections to all.

What Tim in Vermont wants is, first, to repeal the right of gays to marry, then to repeal the right of different races (sic) to intermarry, than to repeal the right of women and blacks to vote.

I cannot see putting someone in jail for her peaceful practice of her religious beliefs. That seems like tyranny to me. Fire her if you will.Saying it's because of contempt of court is specious nonsense. She is not doing it because of contempt, not showing any contempt, but because she feels strongly that it is immoral. It is wrong to force her to do something that she feels is immoral.

After all your claims that gays just want to be protected, you are the ones putting people in jail. Those people didn't even act; you are putting people in jail for peaceful resistance.

Forcing people to use a word with a long cultural history behind it, freighted with meanings that reach into our evolutionary past to describe something completely different is to try to control what people may and may not think.

What word do we have left to describe a marriage between a young man and woman plighting their mutual troth, setting out in life in the hopes of starting a family?

Oh, we don't have any word for that anymore! So how do you think something for which there is no word?

The U.S. Constitution is what SCOTUS says it is, is all. SCOTUS rules; thus, it's a question of might, not who's right. Citizens learn everyday that if you challenge a court order, the court that issued it will escalate until you either comply or die of old age in your jail cell.

As Lewis Carroll noted, "The question is which is to be master — that's all."

Well I am so glad the issue of gay marriage was settled by the Supreme Court once and for all instead of being patient and let the state legislatures change the laws as people came to accept the idea. Thank goodness people won’t be arguing over this in forty years like abortion.

And the commenters above are correct - this is a large escalation in US political polarization. And this all isn't about the gay marriage business either. The sides are firmed up across a vast range of issues and conflicts. This is a threat that was meant to send a message vis all sorts of conflicts, such as the State of Texas vs Federal energy regulation, and etc. across a vast range. Nothing is done in isolation, nor is there a middle ground, nor can one have a mixed set of positions. Sides must be chosen.

I love the way they call it "learning" when they try to bend you to their will. They have complete faith in the perfection of their arguments. You have to hand them that. They can't even begin to critically examine their own beliefs any more than a believing Muslim can question the Quran.

Oh, & by the way, the "Orthodox Jew" who wrote the comment in the Times conveniently left out the fact that his Orthodox brethren in Israel routinely try by legal & other means to shut down businesses that flout kosher rules. That's why all the secular Russian & Ukrainian Jews who want to buy the traditional "paschal" ham around Easter have to sneak off to some garret in a Russian neighborhood to buy it. I'm sure the author is dead set against it, and, by gumbers, he's given his rabbi a piece of his mind on the matter!

I also look forward to his opinions when an Orthodox Jewish bakery in Brooklyn has to bake a cake for a SSM.

Orthodox Jew my ass! It's some secular NY Jew who just pulled the analogy out of his ass because he thought it sounded good.

Hopefully whoever steps in as her replacement starts following the law and issuing the licenses before the county itself gets sued and has to start paying for more lawyers. I don't think Liberty Fund would be allowed to step in and defend the county, if this illegal behavior keeps up...5 of her 6 deputies have agreed to start issuing licenses tomorrow, while she'll remain in jail. The deputies have always been willing to follow the law and issue the licenses, but Davis prevented them. The county attorney says they were afraid to do so. This isn't about her religious freedom, since there was always a way to accommodate her beliefs. Davis was unwilling to allow for this accommodation, she is more concerned about forcing her religious beliefs on others.

"Her own actions put her in jail, the judge said." Uh, no. She did not act, she refused to act. Again, if you want to fire her, that's fine."The couple that was legally discriminated against merely asked for her to be fined, heavily." Lovely. You have no business punishing people for passive resistance. You should not be jailing her, you should not be fining her.

Is there nothing that you consider immoral? Would you not be _outraged_ if a judge ordered you to do that - whatever it is - or he would take away your money or your freedom or your life? Wouldn't you feel that this country is not the land of the free if the law of the land now does that to you? Contemptible. And Althouse is now defending it as well.

The CA S. Court told the clerks to stop issuing licenses to same-sex couples and the clerks did, so no jail time needed there. Interesting to check the reactions from people who're vocally supporting the rule of law in this case, though.

4. She ran for election, won, and in order to be County Clerk, she had to swear and oath.

5. Part of the oath reads:

"I, ....., do swear that I will well and truly discharge the duties of the office of .............. County Circuit Court clerk, according to the best of my skill and judgment, making the due entries and records of all orders, judgments, decrees, opinions and proceedings of the court, and carefully filing and preserving in my office all books and papers which come to my possession by virtue of my office; and that I will not knowingly or willingly commit any malfeasance of office, and will faithfully execute the duties of my office without favor, affection or partiality, so help me God."

6. She swore an oath to not knowingly and willingly commit any malfeasance of office, and that she would faithfully execute the duties of her office.

7. Just because a law changed that she doesn't agree with, or feels that it interferes with her religious beliefs, doesn't give her the right to stop performing the required duties of her office.

8. If she can't in good conscience perform her duties, that's all fine and good, but she needs to resign her office. Else she is knowingly and willingly committing a malfeasance of office.

9. She defied a federal court order to perform her required duties as a government official, so she is going to jail for it.

Freeman Hunt said...I doubt the couple thought their complaint would send the woman to jail.

Why would you doubt that? Note that her actions, while wrong, prevent no one from actually getting married, just from getting a marriage license in that county. Contrast that with the actions of, say, Lois Lerner's IRS group, which actually did shut groups down (giving them no alternative whatsoever).

Pro-choice doctrine is the law of the land. The Supreme Court did not rule for equality, but rather for congruence. The modulus will be not determined by a clerk, The People, or reconciliation, but by force. Selective exclusion is a principle of progressive liberalism.

Davis was unwilling to allow for this accommodation, she is more concerned about forcing her religious beliefs on others.

From what I understand, her name was on all the forms. So, no, I wouldn't let anybody sign my name to anything, either.

And the commenters above are correct - this is a large escalation in US political polarization. And this all isn't about the gay marriage business either. The sides are firmed up across a vast range of issues and conflicts. This is a threat that was meant to send a message vis all sorts of conflicts, such as the State of Texas vs Federal energy regulation, and etc. across a vast range. Nothing is done in isolation, nor is there a middle ground, nor can one have a mixed set of positions. Sides must be chosen.

Because courts are amazingly terrible at solving political problems.

Think of all of the hot button issues. I'll wager all have a court decision behind the ruckus.

If gay marriage advocates did NOTHING, all states would've ended up legalizing it. Now, it is abortion --- something that you will ALWAYS have a percentage (growing, thanks to the behavior of activists) who oppose it if, for no other reason, that they had no SAY in it.

People will accept the result of a vote if it is clean. They do not accept rulings via fiat very well.

"She acted in shutting the clerk window on them, and hiding away in her office." Awesome. Peaceful resistance now excludes shutting windows and hiding. She has to hold absolutely still for it to count.

You didn't answer my question. Is there nothing that you find immoral? - How would you feel if a judge used force to get you to do it?

"Forcing people to use a word with a long cultural history behind it, freighted with meanings that reach into our evolutionary past to describe something completely different is to try to control what people may and may not think."

Not in the least. Marriage has taken many forms throughout the ages and cultures of humankind. If some provincial does not want to accept marriage that does not meet his or her particular time- and culture-bound definition, that is his or her affair, but it becomes the affair of others when the provincials--whether they are in the majority or not--endeavor to deny equal rights and protection under the law to others.

Not in the least. Marriage has taken many forms throughout the ages and cultures of humankind.

Well, this is America and marriage has meant something to Americans and you are trying to force them to think of it as something different.

Private property also is treated differently all over the world. Americans, however look at it one way, and pretending that we can redefine the concept because the North Koreans believe something else would be analogous.

As I have said before, I have no problem with civil unions that grant all rights grantable by the state to couples that marriage grants to a mixed sex couple. I just am not that big into changing the language and creating thought crimes by doing so.

"The modulus will be not determined by a clerk, The People, or reconciliation, but by force."

Martyrs and atrocities are coming. Whats funny is the press isn't all over 100,000+ jobless coal miners. Just to mention one thing. Or about the persistent high unemployment. Or the collapsed and stagnant median income. Or about the collapsed business startup rate. Or higher health insurance premiums. Or a hundred other consequences of tyrannous governance.

The gay business is just the frilly fringe on the whole package. Its all one.

My only problem with this is the inconsistency that people like Lois Lerner and those who thwarted the Fast and Furious investigations can go free and not be in contempt of court, while someone who is unpopular can be -- despite all of them thwarting the law.

She has refused the Secular Empire's religious ritual honoring gay people. That is her problem. She has no support for such a stubborn faith in a religion started by a dead Jew executed by another Empire for rebellion. And his silliest followers claim he is still alive.

Stay tuned to see if she gets the words to say when she is called before the court for her faith. Her education level obviously needs a source of wisdom outside herself. But rumor has it that the Holy Spirit likes a fight for the faith.

K in Colorado: She defied a federal court order to perform her required duties as a government official, so she is going to jail for it.

I find no flaws in your analysis.

Other than you assume that rule of law actually means something. You'll have to convince me on that one. Ten years ago you would not have to convince me. Now you do. It went from an obvious given to a questionable assumption.

From here it just looks like one tribe beating the other tribe over the head.

So now the the judge came down I her and told her to follow the law lets now have republicans hold all cities that are sanctuary cities to the same standard. Follow the law or face punishment. Any pol that doesn't gets hauled before court.And let's have more articles reposing the law breaking of jerry brown Gavin Newsome while agreeing that this woman should have to follow the rules. In fact ONE journalist should ask Jerry brown how him defying prop 8 was in any way different. This woman might face jail time. Does he agree with that verdict. Why doesn't he think it applies to him?

but it becomes the affair of others when the provincials[That's 'hillbillies' to you yokels!]--whether they are in the majority or not--endeavor to deny equal rights and protection under the law to others.

So granting all the same legal rights, but calling it a civil union is a denial of their rights? Ha ha ha ha ha!

No, you insist that it be called something it is not, and to remove from the language the word for the thing that it is not.

The fact that you won't even admit this tells me all I need to know about you.

Does this attitude make "some provincial" want to remain in the same polity as you ? Some people are surprised when their arrogance is answered as it deserves. I realize that your attitude is typical - I live in one of those hives. But the "provincials" are listening. Like Madame Defarge, they are knitting away. Don't be surprised when the day of the tumbrils comes.

garage mahal said... She'll probably make a 100k after this is said and done. Just like Zimmerman and all the other losers conservatives hitch their wagons to. Thanks, suckers! 9/3/15, 3:14 PM

You can't possibly mean that Florida - George Zimmerman. That white-Hispanic that heroically defended his own life from attach by a thug. That Zimmerman? The one that had a history of going out of his way to help all people (African-Americans included) that needed assistance? That Zimmerman? The one cleared of all charges with the help of witnesses (including the thug's girlfriend), an autopsy report, toxicology report, and his own post attack medical reports? That Zimmerman?

Whats funny is the press isn't all over 100,000+ jobless coal miners. Just to mention one thing. Or about the persistent high unemployment. Or the collapsed and stagnant median income. Or about the collapsed business startup rate. Or higher health insurance premiums. Or a hundred other consequences of tyrannous governance.

Wrong party in power. Rest assured if Romney won in 2012, you'd have heard a lot about all of those.

As far as "rule of law", I'll note Hillary and Lois Lerner aren't in jail for blatant crimes. There is no rule of law. We're a banana republic

"1. Did any Federal judge ever send anyone to jail for "marrying" same sex couples in states were such marriages were not permitted?"Gavin Newsome literally had his clerks rewrite the marriage license so that they could give them out to gays and they would be applicable. Is that fraudulent? Not one or two, but THOUSANDS. Why aren't all th clerks who knowingly issued a false license not in jail?Because rule of law is only suitable for dema when it's laws they support.

but is there a law being violated by cities who refuse to assist in enforcing federal immigration laws?

There has been no specific ruling yet, but the letter of the law is clear.

If Arizona gets taken to the mat by the courts for attempting, not to subvert, but to actually implement the letter of Federal immigration law, how can sanctuary cities, which openly flout the letter & spirit of Federal law (e.g. in the case of San Francisco refusing to hand over a felon for deportation to ICE that ICE requested by name), not be considered to be flouting the law?

But the stakes are high. In the first nine months of last year, sanctuary communities across the country refused 8,811 requests by Immigration and Customs Enforcement to hold illegal immigrants in local police custody, according to recent testimony by US Senator Chuck Grassley. Of those requests, 62 percent were for people who were previously charged or convicted of a crime or presented some other public safety risk. Almost 1,900 of the illegal immigrants released by sanctuary communities were later re-arrested.

Remember when Arizona's law was overturned because federal policy was prime on immigration?

Ha ha ha ha! No, it was overturned because liberals didn't like it, no other reason.

She was in contempt of court, what did she expect? As a civil servant she should've understood what a Federal Court order means. If she is too religious to do the job properly she should be recalled. And as for the contempt of court, serves her ass right to sit in jail. Now she can be a martyr for her Apostolic extremist religion. She had no right to shove her religion down others throats.

I continue to believe that this whole issue stems from the fact that we use a single word -- "marriage" -- to refer to both a religious sacrament and a government-certified social contract. Split the words and she won't have to conceive of their same-sex union as a "marriage" to issue them a license.

"Gabriel said...None of the officials (Mayor Gavin Newsom, Mayor Jason West, D. Bruce Hanes) who issued same-sex marriage licenses when that was illegal went to jail or were threatened with jail. "Follow the law or accept the consequences" is not the operating principle here.

The principle is "What identity will be favored in the selective application of law?""

When a court ordered Mayor Newsome to stop issuing marriage licenses to same-sex couples, he complied with the order.

Thus, the issue of whether to hold him in contempt never arose.

He'd made his statement, produced his good photo-ops, and then quietly backed away.

She is now a martyr for a whole swathe of political positions and issues. Ted Cruz just got on her bandwagon. Its all one big issue, now. Its the people vs the government, all of it. Is it prudent to make such martyrs ?

Assuming her belief is sincere, she really should have resigned her position. That said, it's hardly fair that the rules have changed in the middle of her term. If this issue had been resolved legislatively, I wonder if anyone would have anticipated this and provided work a rounds to grandfather people in for the remainder of their term when elected, or for some reasonable period if it is a hired position in some counties.

In the analogy to Orthodox Jews and issuance of business licenses, for example, what if a person was hired to issue one type of license but then the department shuffled people around so that an observant Jew was assigned this new task that (perhaps) violated his conscience. Wouldn't that make a difference? Shouldn't such a person be permitted to refuse that new task, if it wasn't part of the job when he decided to take it?

Now she can be a martyr for her Apostolic extremist religion. She had no right to shove her religion down others throats.

You do understand who owns most of the AR-15s in this country, don't you? I'll give you a hint: they aren't urban gays in blue states. Do you know what about 60% of the enlisted men in the Armed Forces call Bible Thumpers? Mom & Pop.

Watch the road you're traveling down, JD. You might not like where it leads.

As for her martyrdom, that's a sham. She's been married 4 times. How does she represent her own faith or the sanctity of marriage? I would hope people would be intelligent enough to see this for what it is.

why not have her deputies, who don't have a problem with Anthony Kennedy's law, issue teh licenses? That would accomodate both her religious beliefs, and the same sex couples who want a license issued there (even if they are Grievance Tourists, who wanted to attempt to get a license there simply to bring the coercive power of the state down upon her - I don't know if they are, but it's not outside the bounds of possibility in a case like this).

If freedom, real freedom, is important, this compromise could have happened. But I don't think that was the objective.

I do not think a mere Federal judge can waltz in and take over the administration of State offices, which is what this judge did when he started issuing orders to the County Clerk's subordinates. There has to be a protocol to follow before that.

This judge let his ego run away with him, and it is now a different issue to go to the Supreme Court, or at least the next level up from this guy.

Doesn't Title VII of the Civil Rights law of 1964 insist there can be no discrimination for religion? And doesn't the EEOC's labor law protect her rights?

If I understand the law correctly, the employers are required to accomodate her beliefs, and arrange for another employee to do the part of the job she objects to, be it a Muslim stewardess giving out alcohol or (in my own case) a Catholic physician at a Federal clinic refusing to give out abortion pills.

To do otherwise is to essentially ban strict religious believers from certain government jobs.

What bothers me about this is the raw exercise of power here.The woman is an elected county official. She takes an oath to fulfill her duties, but really she is paid by the county to do a job, within the bounds of state law. if she fails to perform her duties she could either:1. be voted out of office by the public or2. be removed from office by the rules established by state law, (I have no idea what that would be)The federal judge is ordering the woman to perform the duties of her office. Since she refuses his finding her in contempt of court is really arrogant. It boils down to "you do as I say, peasant, or I'll punish you!" The judge is meddling in the state's business. He should have no STANDING to intervene in what is a state matter. Citizens are told all the time that they have no standing to sue the government for its frequent and inevitable foul ups. Why should they all be so above the law?(I know, that is rhetorical, humor me)

@Hagar:A federal judge can apparently do any damn thing he pleases, up to and including imprisoning citizens without trial or due process. Taking over a local clerk's office must be child's play.running it however may be more of a nettle to grasp.

I'm curious what the people who claimed that gay marriage would in no way become like abortion are thinking now.

Anyway, the primary issue here is less about the legal argument (which was never going to work) and more about what this suggests. I've heard far more people talking about how the rule of law is now meaningless than at any time prior to this. And I don't mean just your usual misanthropes and would be revolutionaries, I mean clean cut "law and order" types.

Buwaya (and others) are right. Battle lines being drawn. Nobody's right, when everybody's wrong. We are fracturing ourselves by forcing changes that are unacceptable to too many, rather than letting change occur organically.

Who will win this civil war? Answer--as always--somebody else. You and I... will be dead.

You will know it's begun when the current 60s radicals in charge (including the CiC, channeling his parents) finally convince the BLMers (the current version of the peasants of the 1905 Peasants Revolution) to crash through the gated communities of Suburbia and burn those folks ill-gotten fancy furniture (their vanities?) and paintings in raucous bonfires.

In a kosher deli I frequent they have excellent rye bread. They have the best corned beef. They have cheese, and they have sauerkraut. They might even have some russian dressing. I firmly believe they have all the makings of a fantastic rueben, but I can't get one there. The proprietors of that delicatessen seem to think God forbids ruebens. I think I have a right to demand and get a rueben, since I can go a few blocks in any direction and find rueben sandwiches of various quality galore. Maybe I should burn down that deli?

Well, I was expecting to wade through a lot of sky-is-falling doomsdayism, and I wasn't disappointed. Marriage as a vital institution is crumbling in this country, but it's not because of gay marriage. It's because low-class people (including a lot of black Americans and Hispanic immigrants) are either having kids out-of-wedlock or are throwing away short-lived marriages. As Charles Murray aptly demonstrated in his book Coming Apart, the elite are getting and staying married, while the working class are not. Or as Amy Wax put it more succinctly, they "talk the 60's but live the 50's." I'd like it a lot more if they talked the 50's as well. But that's a separate argument.

The religious liberty angle was always a loser. Could a Southern Baptist government officially uniformly decide to stop issuing liquor licenses to local businesses? Crafting legal defenses to defend business owners was a much better suit and rested on a much stronger case. If Davis believes that her job duties conflict with her religious beliefs, then she should quit. On a choice not to quit, she said, "And if I left, resigned or chose to retire, I would have no voice for God’s word." If she wants to be a voice for god's word, then she should be a breacher and not convert the clerk's office into her own personal podium. Interestingly, the previous clerk was Davis' mother, and her son is one of the deputy clerks. Sounds a lot like local governance as the family business.

Once the assistant clerks indicated that they would issue licenses, then the basis for contempt disappeared, which is designed to permit the complaining party to get the relief they want, i.e. a license. And once the plaintiffs get their license(s) tomorrow, then the case is moot. And if they do not bother to seek a license, now that the assistant clerks are going to issue them, then they never had standing in the first place and the whole case is a sham. There is no rule of law that says any given person or official must suffer involuntary servitude when others are readily willing to do what is asked. The law merely states that you cannot prevent those others from doing it.

Quaestor - I'm a little surprised that your kosher deli has cheese. Few certifying authorities would tolerate that, I think.

In other news, the "Orthodox Jew" analogy also fails, because Orthodox Judaism has no issue with non-Jews eating cheeseburgers. I assume this Democratic official believes that other people need to adhere to her religious beliefs.

"If she wants to be a voice for god's word, then she should be a breacher and not convert the clerk's office into her own personal podium."

Yes but that would not serve the purposes of the gay rights agitators who want the confrontation. This is a battle for power. Gays might look at Iraq and see what is happening but they are not interested in reality.

Blogger Oh Yea said..."Well I am so glad the issue of gay marriage was settled by the Supreme Court once and for all instead of being patient and let the state legislatures change the laws as people came to accept the idea. Thank goodness people won’t be arguing over this in forty years like abortion."

We are on the road to civil war again. Our Washington masters do whatever they hell they want to do, and local officials are JAILED for refusal to comply with another extremely divisive Supreme Court decision.

after decades of the issue working its way through the courts, legislatures, and popular votes, the highest court in our land concluded that the equal protection clause of our constitution affords gay citizens the same right to name their legal spouse as straight citizens do...which is what we commonly call a 'marriage' for which a government-issued license is required. this government clerk , who swore to uphold the duties of her office and even after a direct court order to perform those duties, chose to flatly refuse to do her job resulting in her being held in contempt. this woman is still free to believe whatever she wishes to believe but if that conflicts with her ability to function in her position then she should step down, just as justice scalia has made clear in his recent comments on this situation.

Commenters may be quite right that if Ms. Davis cannot find it within her conscience to issue marriage licenses to same sex couples, she should resign, and if she won't, he may have her jailed for contempt of court. Perhaps the Professor can elucidate that for us.

However, since she will not resign and will not issue licenses, I still do not think a Federal judge can take over a local State office and run it himself.

Perhaps the U.S. Attorney General can, but I think there would be quite a few hoops to pass through before that can happen.

The best thing here, I think, would be for the Governor, who apparently is onboard with same sex "marriage," to step in with some emergency power, if that is allowed under Kentucky law, and if not, they should just have to wait until the Kentucky Legislature impeaches and removes her, and the Office of the County Clerk in Rowan County, KY should just remain closed until that happens. Somebody will blink, or think of some legal solution, and there is no emergency that requires immediate action.

"However, since she will not resign and will not issue licenses, I still do not think a Federal judge can take over a local State office and run it himself."

He isn't. This is a result of a lawsuit that was filed back in the beginning of July, and the plaintiffs are not just gays. Davis is refusing to grant any marriage licenses and was sued by an opposite-sex couple as well. In the course of the lawsuit, it was ordered that she could not refuse to grant licenses, and she ignored the order. Contempt of court is a common penalty for refusing to abide by a court order; if a court had no mechanism for enforcing its orders, then any order could be ignored by anyone for any reason.

For what it's worth, and not that it really matters, but Davis was elected to the position as a Democrat.

"Did you know that in some places in Iraq they throw homosexuals off of tall buildings to see if they can fly.That's odd.Don't you think?"

Rusty, I honestly want to know what point you believe you are making with comments like this. Yes, Iraq is a shitty country that most people in this country, given the choice, would never wish to live. So what?

By your own logic, since Christians are persecuted in worse ways across the world, then they shouldn't complain when they are persecuted to a far less degree here. Why should conditions in places like Iraq or Saudi Arabia or Sudan set the bar for standard in this country?

@Michael K:

"Yes but that would not serve the purposes of the gay rights agitators who want the confrontation."

Do you believe that elected officials should get to pick and choose which laws to follow and which to ignore? Again, if she believes the duties of her office conflict with her religious beliefs, then she should quit. Aren't conservatives rightly angry about Obama usurping the law in terms of immigration enforcement. If he claimed a religious objection to deportation, would you accept that argument? I am doubtful. If Davis was refusing to file divorce paperwork on religious grounds, would you agree with that?

The Supreme Court makes decisions all the time with long-standing effects. Some I agree with, and some I disagree with. But the independent judiciary is a key component to our divided system, and one of its primary purposes is to provide a check on popular will, or the "tyranny of the majority," as Jon Stuart Mill called it. There are options for checking the judiciary, specifically amending the constitution.

Ann Althouse said... Government officials can be ordered to follow the law. To refuse to follow the order is contempt. Contempt is dealt with by jailing the person to get them to comply. It's completely ordinary.

We didn't see an such order for Gavin Newsom to follow the law, or the Colorado officials who issued licenses to pot sellers. So the correct phrase is "It's completely arbitrary".

Jerry Brown, as AG, had a duty to defend laws of the state. Prop 8 was such a law. He deliberately chose to not defend it. Clear dereliction of duty. What happened to him? Nothing. So, if you are whining about rule of law now and didn't then, fuck you.

"So when are we going to start putting Mayors of Sanctuary cities in Jail for ignoring federal laws?"Seriously, this is actually a perfect issue for republicans to hammer home how lawless the democrats have been. Stipulate up from that Kim is in violation of the law.And then start bringing up all the instances where modern dems ingnored the laws completely be it about gay marriage, or about immigration, or about servers. Maybe Jerry brown should have to answer questions about his not respecting rule of law. Maybe those governors who flaunt our immigration laws should have to answer questions about not respecting rule of law. Maybe Obama,.... what was I thinking?

@ J. Farmer,Taking over the County Clerk's office and running it himself is exactly what this Federal judge does when he presumes to tell the Clerk's employees to ignore her orders and follow his instructions.

His beef should be with the State of Kentucky; not the County Clerk. She is not a Federal employee. In fact, she is not just a State employee either, but an independently elected official in an office that is very basic to the American political system. A Federal judge messing with the Office of County Clerk should make all the state governments sit up and take notice.

I do not think a mere Federal judge can waltz in and take over the administration of State offices, which is what this judge did when he started issuing orders to the County Clerk's subordinates. There has to be a protocol to follow before that.

This judge let his ego run away with him, and it is now a different issue to go to the Supreme Court, or at least the next level up from this guy.

9/3/15, 5:00 PM"

Too bad a Republican congress doesn't simply vote impeach and remove the judge. They can if they want to. A simple vote by the house to impeach and a simple vote by the senate to remove.

Taking an unpopular public stand for righteousness is as old as the Hebrew Prophets. She will be fine.

She has in effect taken the Federal Court hostage. What can they do to her that doesn't cause her stand to the point of being thrown into jail for her faith to encourage others to stand up for righteousness when they see nothing bad happens to her except for her chains? The nobility of The Equal Gay Culture suddenly will not hold up all that well.

"What can they do to her that doesn't cause her stand to the point of being thrown into jail for her faith to encourage others to stand up for righteousness when they see nothing bad happens to her except for her chains?"

Oh, please! This is so overwrought it's laughable. She was not "thrown into jail for her faith." She was jailed for violating a court order and being in contempt of court; it's the same fate that could easily be imposed on anybody for ignoring a court order for any reason. The judge offered her the option of having her deputies providing the licenses, but she refused. Government officials do not get to decide which laws to implement and which to ignore based on their personal religious views. If she wants to believe that the creator of the universe made a deal with the Hebrews, she's personally entitled to that belief. But she has no right to impose that point-of-view of any member of the civic public.

Remember, Davis isn't just refusing to provide marriage licenses to same-sex couples. They are refusing all licenses. And opposite-sex couples are part of the original lawsuit in Federal court.

And even approaching this from a theological point-of-view, Davis' position still makes no sense. If she believes that there exists something called "marriage" defined by an invisible magic spirit, then what the state decides to call marriage is something different and should be irrelevant to such a being and irrelevant to Davis. This is just stupid political tribalism rearing its ugly head. I thought Gavin Newsom's political stunt in San Francisco was stupid and counterproductive. Conservatives were correct to point out that he was not allowed to rule by fiat if rule of law meant anything. Yet here is someone who believes her personal beliefs trump rule of law, and she is being supported? Seems pretty freakin' disingenuous to me. I didn't support Newsome, and I don't support Davis. And whatever you think of SSM, at least that's a defensibly coherent position.

The judge is Jim Bunning's son. He wasn't good enough to play in MLB like his Dad, who was a great pitcher but a lousy US Senator. Although connections will get you on the federal bench, it won't get you into MLB. W was a shitty baseball owner and shitty president. Nothing like being lectured on the rule of law by a judicial lightweight with daddy connections appointed by a presidential lightweight with daddy connections.

Last I looked you don't get to ignore either RFRA, which requires that government enforce the law using the least restrictive possible means when it comes to restricting religious liberty. So how can jailing the conscientious objector be the least restrictive of all the available options?

Last I checked you don't get to ignore Title VII of the 1964 civil rights act under which religion is a protected class. The employer... Her county, is required to provide reasonable accommodation. And the accommodation is readily available: take her name off the stamp.

It's her county and her weak governor who should be held in contempt. Especially since the passage prohibiting SSM is still in the state Constitution anyway.

When a person refuses to do his job, isn't the most common remedy that the person gets fired, not sent to jail? If the judge is doing this to please the gay community surely he must realize this is a public relations disaster. There were gay activists cheering outside the courthouse when the clerk was sent to jail. I didn't notice much love in their hearts. Ir rather looked to me like the vindictiveness of victory.

have asked to be jailed rather than simply obey a Federal Judge 's Order to do easy routine paperwork except for her faith?

She has clearly lost her fear of the Federal Authority as one seeing what is eternal. For better or worse, That kind of human boldness has been the essence Judaeo Christian faith since Moses started it when he lost his fear of Pharoah.I agree that we cannot accommodate her faith or we will lose power like Pharoah did and she will havebfreedom of speech which is then basis of all freedoms.

If she feels that it violates her principles to follow the law, then she should do the honorable thing and resign, and find something else to do that fits within her moral views. Yeah, $80,000 jobs like that don't grow on trees, and she IS a Democrat, so resigning seems unlikely.

Rusty, I honestly want to know what point you believe you are making with comments like this. Yes, Iraq is a shitty country that most people in this country, given the choice, would never wish to live. So what?

Yes.So what.

By your own logic, since Christians are persecuted in worse ways across the world, then they shouldn't complain when they are persecuted to a far less degree here. Why should conditions in places like Iraq or Saudi Arabia or Sudan set the bar for standard in this country?

It didn't come to my attention until last night, but apparently she did not want a reasonable accommodation. She wants to use her office to make a point of civil disobedience.

I would have supported her to the extent that she had been just asking for someone else to certify the SSM applications but this is something different. I suppose at some point if judicial overreach continues I might support this kind of civil disobedience, but I'm not there yet. My line in the sand would probably involve abortion- if abortion rights advocates were to succeed in overturning the Hyde Amendment and some officials were refusing compliance, for instance. Or if doctors were forced to perform abortions or lose licensure- I'd support the board officials refusing to strip them of their licenses in order to take a stand.

"In a kosher deli I frequent they have excellent rye bread. They have the best corned beef. They have cheese, and they have sauerkraut. They might even have some russian dressing. I firmly believe they have all the makings of a fantastic rueben, but I can't get one there. The proprietors of that delicatessen seem to think God forbids ruebens. I think I have a right to demand and get a rueben, since I can go a few blocks in any direction and find rueben sandwiches of various quality galore. Maybe I should burn down that deli?"

Inapt analogy.

An apt analogy: a (non-kosher) deli that has rye bread, corned beef, cheese, sauerkraut and russian dressing and offers reuben sandwiches on their menu employs a counterman who is (newly) orthodox, and he refuses to make customers reuben sandwiches, despite his employers telling him he must. Should he be permitted to refuse to do his job?

Robert Cook- you forgot the part where the deli did not sell Reubens when the guy was hired.

And in any case I believe the law is that the owners have to give him a reasonable accommodation (having a different counterman prepare those sandwiches.) It would be different though if he refused that accommodation and said that he expected to continue working there but would not serve any sandwiches as long as Reubens were on the menu. Then the law would not be on his side (as it is not in the case of Davis.)

The religious liberty angle was always a loser. Could a Southern Baptist government officially uniformly decide to stop issuing liquor licenses to local businesses? Crafting legal defenses to defend business owners was a much better suit and rested on a much stronger case. If Davis believes that her job duties conflict with her religious beliefs, then she should quit. On a choice not to quit, she said, "And if I left, resigned or chose to retire, I would have no voice for God’s word." If she wants to be a voice for god's word, then she should be a breacher and not convert the clerk's office into her own personal podium. Interestingly, the previous clerk was Davis' mother, and her son is one of the deputy clerks. Sounds a lot like local governance as the family business.

9/3/15, 6:54 PM

el polacko said...

after decades of the issue working its way through the courts, legislatures, and popular votes, the highest court in our land concluded that the equal protection clause of our constitution affords gay citizens the same right to name their legal spouse as straight citizens do...which is what we commonly call a 'marriage' for which a government-issued license is required. this government clerk , who swore to uphold the duties of her office and even after a direct court order to perform those duties, chose to flatly refuse to do her job resulting in her being held in contempt. this woman is still free to believe whatever she wishes to believe but if that conflicts with her ability to function in her position then she should step down, just as justice scalia has made clear in his recent comments on this situation.

9/3/15, 8:23 PM

I think you are both correct, her "job" was to uphold the law. The law is SSM, she should have either done that, resigned in protest, or abdicated that responcibility (issuing of any marrage licenses) to a subordinate.

You can not take the benefits and refuse the burdens.

This (it appears) has moved beyond that thougth, at this time. It now seems somewhat like a camp fire that has gotten out of control and become something else. It is becoming a rallying point for states rights and the rule of law. A situation of the wrong case at the right time? (who was it that said don't let a good crisis go to waste?)

I think how she has handled this is wrong and grandstanding. Not very Christian BUT what this case represents resinates with many, many people and that is: Why is she being made an example of versus others that are far more deserving? You have all manner of fediral officials in all manner of departments (to include the WH) that have blatently flaunted the law and made up law from thin air. Where is their reckoning with justice? Why is it only lowly clerks and bakery owners and conservitive groups that get the heel of government on their necks?

"Robert Cook- you forgot the part where the deli did not sell Reubens when the guy was hired."

I almost added a comment about that, but considered the answer to that self-apparent. If the deli is non-kosher, it is not up to an employee to apply his own orthodoxy and ignore or defy the standards of his employers. As has been said about the Country Clerk, if the (newly) kosher counterman in a (newly) non-kosher deli--let's say the ownership of the deli has changed, or the heirs to the original owners are not orthodox--is unwilling to perform under the new management's revised operating rules, he must resign or be fired.

The kosher deli analogy is all wrong. Kim Davis is not an employee, she is an elected official and as such represents the (or in this case, is) the state. The first amendment applies to her only in the sense that it prevents her from imposing her religious tenets on us. In no way does it protect her publically held religious ideas since she is the state in this case. If she were acting as an individual, then she would have a case, but she took two oaths to uphold the law and to perform her duties as county clerk which includes issuing marriage licenses. She has no right or duty ot withhold any license and can't make that decision on her own as that duty is mandated by KY law.She was jailed for contempt of court. This is called "Rule of law" and is not a convenient meme to trot out when it suits your case, it is the absolute. If a judge can't enforce his decisions then chaos reigns. If people advocate chaos, fine (another protected First Amendment right), but not very conservative.There are ways to change it, and she could avail of herself to take them, but they are difficult and deliberately so under our Constitution. Judge Scalia, in a 2002 essay on the death penalty, states that any judge who can't follow the law due to personal beliefs needs to resign. LTC Terry Lakin had the same choice and didn't take it either. Kim Davis placed herself, on purpose, into this situation for her own reasons knowing that this would happen. When it did, and everyone involved knew it would, it was no surprise.

The judiciary isn't independent. They are not Greek Gods. They are politically connected lawyers appointed due to their political connections. They have the authority to send people to jail for defying their orders. If a lot of people defy their orders, there will be no place to hold them all. But most people will obey their orders because they don't want to go to jail. Some people prefer jail to obeying judicial orders. That's how the system works. It doesn't require people to pretend the judiciary is independent or that the rule of law is anything other than a scam perpetuated by people with power.

That's a ridiculous statement. Our entire system of governance is based on a separation of powers divided between executive, legislative, and judicial powers. Having a judiciary independent of the executive and legislature is one of the cornerstones of our entire system. Now, if you want to object to 800 years of common law practices, fine. Let's hear your proposal for a whole new system. But if one takes your statement seriously, then you should't accept the legitimacy of any court on any matter.

"Why is she being made an example of versus others that are far more deserving?"

She is not being made an example of. The courts didn't go looking for her to make an example of her. She was sued by same-sex and opposite-sex couples. Remember, Davis is refusing to issue any marriage licenses. She lost her case, was ordered to resume issuing marriage licenses, and subsequently refused. She was given the option of allowing her deputies to issue licenses, so that she would not be involved. She refused that, as well. She said that she will not step down or retire because she wants to be a "voice for god's word." Because of this, she was found in contempt of court, which is a common remedy used in courts all over this country every day to enforce court orders.

"Why is she being made an example of versus others that are far more deserving?"

She is not being made an example of. The courts didn't go looking for her to make an example of her.

9/4/15, 12:45 PM

Ah but what of the FIFO requests to Clinton and Co. and the IRS and the EPA and other government agencies that go unanswered? Those individuals and agencies were ordered by the court to produce the requested information. When they don't, back into court for another hearing and another deadline and another stall. Where is the court expressing its contempt against them and theirs?

So sorry, in this environment she IS being made an example of where as many, many others that are far more deserving are not.

Again, I think she is wrong in how she did this, not necessarily in her opinion but in her choice of how to express that opinion. The other instances are FAR more egregious and yet...

You're comparing apples and oranges. She was found in contempt of court and turned down multiple opportunities to avoid the contempt charge. The fact that this is different than other cases, under different circumstances, in different courts, with different judges does not mean she is being "made an example of."

If I get found guilty of shoplifting and sentenced, I can't claim that I am being made an example of just because there are more serious cases that aren't being adjudicated properly.

"There's no precedent getting established here. Government officials can be ordered to follow the law. To refuse to follow the order is contempt. Contempt is dealt with by jailing the person to get them to comply. It's completely ordinary."

It seems like a precedent. Because of all the examples of liberal officials refusing to perform their official duties (gay Texas judge refusing to perform any marriages because same-sex marriage is not legal; Ohio secretary of state refusing to investigate voter fraud; as well as the entire executive branch of the state of California refusing to enforce Prop 8; our president refusing to enforce immigration laws) I don't ever remember any judge ordering them to perform their job duties.

Don't get me wrong, I think this Kentucky county clerk should do her job or resign; but I fail to see why she should be held to a different standard.